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Transmittal Number: 279
DATE: May 14, 2008
OFCCP ORDER NO.: ADM Notice/Other
- SUBJECT: Preserving Employment and Personnel Records in Electronic
Format.
- PURPOSE: To set forth OFCCP's policy regarding: (1) the use of electronic
recordkeeping systems to comply with the record retention regulations; and
(2) the destruction of paper originals of personnel and employment records
that are otherwise preserved in electronic format.
- FILING INSTRUCTIONS: Holders of ADM and
LEG Binders only: File this Notice with the attachment behind the "Other"
tab in your Administrative Practices Binder.
District and Area Office EOSs and EOAs only: File this Notice with the attachment
behind the tab for ADM Directives in your FCCM Binder.
- OBSOLETE DATA: None.
- DISTRIBUTION: A, B (both hard copy and
electronically), and C (hard copy only).
- EXPIRATION DATE:This directive remains in effect until superseded.
(Signed)
CHARLES E. JAMES, SR.
Deputy Assistant Secretary for Federal Contract Compliance
05-14-2008
- SUBJECT: Preserving Employment and Personnel
Records in Electronic Format.
- PURPOSE: To set forth OFCCP's policy regarding:
(1) the use of electronic recordkeeping systems to comply with the record
retention regulations; and (2) the destruction of paper originals of personnel
and employment records that are otherwise preserved in electronic format.
- BACKGROUND: Section 60-1.12 (a) of the regulations implementing
Executive Order 11246 currently requires any personnel or employment record
that is made or kept by the contractor to be "preserved" by the
contractor for a minimum of two years. However, if the contractor has fewer
than 150 employees or does not have a contract of at least $150, 000, §
60-1.12 (a) provides that the record retention period is a minimum of one
year. The regulations implementing the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, 38 U.S.C. 4212, and Section 503 of the
Rehabilitation Act of 1973, as amended, contain record retention provisions
that are similar to § 60-1.12. See 41 CFR 60 250.80, 41 CFR 60 300.80,
and 41 CFR 60 741.80. The current regulations also require that contractors
permit access to their premises so that the OFCCP may inspect and copy their
books and records, including computerized records. See 41 CFR 60-1.43, 60-250.81,
60-300.81, and 60-741.81.
Contractors and consultants have asked whether the OFCCP record retention
regulations permit the destruction of the paper originals of employment
and personnel records when such records are otherwise retained electronically.
The OFCCP has interpreted the term "preserve" as having its ordinary dictionary
meaning, "to keep safe from harm, injury, or destruction." Webster's Ninth
New Collegiate Dictionary, p. 931 (1984). Historically, the OFCCP has required
that records be retained in their original form, and precluded a contractor
from destroying the original paper records before the retention period has
expired. However, the regulations do not prescribe a particular format in
which the records must be preserved.
The OFCCP record retention provisions contain language similar to that
found in the Equal Employment Opportunity Commission's (EEOC) regulations.
Significantly, the EEOC addressed whether electronic recordkeeping would
satisfy the recordkeeping requirements under Title VII, the ADA, and the
ADEA in an Informal Discussion Letter. See www.eeoc.gov/foia/letters/2006/titlevii_ada_adea_recordkeeping.html.
The Informal Discussion letter states in part "nothing in 29 CFR § 1602.14
(Title VII and ADA record keeping) requires preservation of records in paper,
rather than electronic, form. However, please make sure that any system
adopted by your clients captures and retains all information contained in
documents. This would ensure that documents are properly 'preserved' as
required by 29 CFR § 1602.14."
In addition, several Government agencies have issued regulations on the
use of electronic recordkeeping systems. See e.g., DOL's Employee Benefits
Security Administration's(EBSA) regulation at 29 CFR 2520.107-1; the Pension
Benefit Guaranty Corporation's (PBGC) regulations at 29 CFR 4000.53 and
4000.54; the Securities and Exchange Commission's regulations at 17 CFR
31.a-2 and 17 CFR 275.204-2; and the Commodities Futures Trading Commission's
regulation at 17 CFR 1.31. Generally, these regulations allow paper or non-electronic
records to be stored in electronic formats provided certain safeguards are
in place to ensure that the electronic storage system is reliable and records
stored electronically are complete, accurate, and accessible.
In light of the increasing use of electronic media in all aspects of business
administration, and the advances made in the technology used for converting
paper documents into electronic formats, the OFCCP believes that it is appropriate
to reexamine whether it is permissible for contractors to preserve in an
electronic format those personnel and employment records originally created
in paper form, and dispose of the paper originals.
- POLICY: The OFCCP regulations at
41 CFR 60-1.12, 60-250.80, 60 300.80 and 60-741.80 require that contractors
preserve complete and accurate personnel records. The regulations at 41 CFR
60-1.43, 60-250.81, 60-300.81 and 60-741.81 also require contractors to permit
the OFCCP access to their records, including computerized records, for inspection
and copying. See also 41 CFR 60-1.4(a)(5) and 60-1.20(f). These obligations
continue. Contractors may use an electronic recordkeeping system to comply
with the record retention requirements. However, if records are maintained
electronically, contractors must take care to ensure that the electronic records
comply with the record retention and access regulations, i.e., the electronic
records are accurate, complete, and accessible to the OFCCP.
A contractor may transfer original paper records to its electronic recordkeeping
system, if the medium used accurately reproduces the paper original and
would constitute a duplicate or substitute copy of the original paper record
under Federal law. In addition, a contractor may dispose of the original
paper records any time after they are transferred to its electronic recordkeeping
system, except that the original paper record may not be disposed of if
the electronic copy would not accurately reproduce the original record.
During a compliance evaluation, compliance officers may ask that paper originals
stored in electronic format be converted into legible and readable paper
copies and provided to OFCCP.
The use of an electronic recordkeeping system does not in any way alter
the longstanding requirement that the contractor allow OFCCP to inspect
and copy records at the contractor's premises during a compliance evaluation
or complaint investigation. Thus, all of the contractor's electronic records
must be made readily available for review, and must be readable and capable
of being copied by OFCCP.
Compliance officers should consider electronic recordkeeping systems with
the following characteristics as complying with record retention regulations:
- the system has reasonable controls to ensure the integrity, accuracy,
authenticity, and reliability of the records kept in electronic form;
- the electronic records are maintained in such a manner that they may
be readily inspected and/or copied by the OFCCP, as required under the
regulations at 41 CFR 60-1.43, 60-250.81, 60-300.81 and 60-741.81 (for
example, the recordkeeping system should be capable of retaining, preserving,
retrieving and reproducing the electronic records);
- paper originals stored in electronic format are readily convertible
into legible and readable paper copy; and
- adequate records management practices are established and implemented
(for example, such practices might include labeling electronically maintained
or retained records, providing a secure storage environment, creating
back-up electronic copies, observing a quality assurance program evidenced
by regular evaluations of the electronic recordkeeping system, and retaining
paper copies of records that cannot be clearly, accurately or completely
transferred to an electronic recordkeeping system).
- OBSOLETE DATA: None.
- DISTRIBUTION:
A, B (both hard copy and electronically), and C (hard copy only).
- EXPIRATION DATE:
This directive remains in effect until superseded.
(Signed)
CHARLES E. JAMES, SR.
Deputy Assistant Secretary for Federal Contract Compliance
5-14-2008
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